Most experienced lawmaker says Legislature has been weakened, but a new day is dawning

JoANNE YOUNG Lincoln Journal StarJanuary 10, 2019

The legislative branch of Nebraska government convenes Wednesday morning with the swearing in of 13 new members and election of leadership.

But it begins with more than a few questions about the power of the Legislature in light of what some senators believe is disrespect that has been shown by the other two branches of government.

Sen. Patty Pansing Brooks complained in April that Gov. Pete Ricketts, in inserting a Title X reproductive health provision into a mainline budget bill, was the executive branch reaching into the legislative branch and “telling us what we will or will not do.”

Then in May, Attorney General Doug Peterson and state Corrections Director Scott Frakes sued the Legislature’s Judiciary Committee and Executive Board because the Judiciary Committee issued a subpoena to compel Frakes to answer questions about the state’s lethal injection protocol.

The Probation Administration, a part of the judiciary branch, has had a bumpy relationship with the legislative Ombudsman’s office over attempts to prescribe how the Legislature’s Inspector General for Child Welfare, Julie Rogers, can investigate cases of death or serious injury of children involved in the juvenile justice system, which it manages.

State Court Administrator Corey Steel said in late August that Rogers’ attempts to investigate and question judges’ orders, or lack of orders, pertaining to specific cases raised grave constitutional concerns.

It also shows disrespect, said departing Sen. Burke Harr of Omaha, when senators need information from state agencies, to fulfill their lawful role of oversight, and don’t get answers.

Harr and others wanted to know why, for example, Ricketts had fired State Patrol Superintendent Brad Rice in 2017, and why at the end of that year, seven patrol members were fired, disciplined or allowed to resign or retire by the new colonel, John Bolduc.

The executive branch controls information within its agencies, and the Legislature was stonewalled, he said, on those and other questions.

Part of the problem is that senators are part-time, term-limited and a large number have narrow experience, Harr said. Term limits especially have weakened the Legislature’s power.

This session, 12 members will have no experience and a total of 30 members will have two years or less in the Legislature.

On the other hand, lawmakers have the ultimate authority of the purse strings.

Last session, Sen. Laura Ebke of Crete, chairwoman of the Judiciary Committee, spoke about the difficulty she had with a package of prisons-related bills because she was too concerned about how the executive branch would react. She forgot, she said, that separation of powers, enshrined in the Constitution, really means separation of powers.

“You and I don’t take an oath to even care what the executive branch thinks,” she told fellow senators. “We take an oath to the Constitution, which means that we must uphold the separation of powers, and act as a separate, equal branch of government. We make a promise to our constituents to do what we think is right in the policy process — not what the governor says we must do or not do.”

Ebke did not succeed in her attempt for a second term, and her time as a state senator will end Wednesday when Tom Brandt is sworn in, but as a constitutional scholar, she is well-versed about the independence of the legislative branch.

This country’s founders, Ebke said, intended for the legislative branch of government to be the most powerful. And all the states were guaranteed the same system of government.

Article I of the U.S. Constitution deals with the powers of Congress.

“There’s a certain logic that says that the thing that they mentioned first is the most important,” she said.

With discussions at the constitutional conventions and in the Federalist Papers, compromises were made to get to the idea of separate but co-equal branches of government. The legislative is not supreme, but has unique powers, Ebke said.

In Nebraska’s Constitution, Article I deals with the rights of the people. Article II is the distribution of powers. Article III addresses legislative powers, and executive powers are covered in Article IV.

“The American way, liberty and justice and freedom ... is promoted when you have separation of powers, when everybody knows their limits,” she said. “And it’s diminished when people don’t understand the limits of their powers.”

There are a limited number of current members who have that sense of protecting the institution and keeping it strong, she said, and she has found that disconcerting.

Sen. Ernie Chambers, who has a total of 43 years in the Legislature representing Omaha’s District 11, noted at an Executive Board meeting in December the weakening of the legislative branch and its powers in recent years.

“The other two branches threaten, they intimidate, and because of the kind of people who wind up in the Legislature, there’s a tendency to become fearful and back off,” Chambers said.

State agencies, political parties and senators who have been “purchased” by the governor have weakened the Legislature as an institution, he said.

“My last two years here I’m going to spend trying to put some steel into the spine of the Legislature. I’m going to give lectures. I’m going to fulminate on the floor of the Legislature,” he said. “I’m going to serve notice to the judges, to the attorney general, to the Republican Party, to these people ... a new day is dawning and I’m saying that for the members of the Legislature.

“We are a branch of government and we are the paramount branch. The hand that controls the purse strings controls everything,” Chambers said.